Decriminalisation

Prohibition With Civil Penalties

Under this legislation, cannabis possession and use remains explicitly illegal. However, specifically defined forms of cannabis possession are exempt or sheltered from criminal control provisions. Instead, minor, non-criminal punishments, such as a civil citation, limited fine or temporary revocation of one’s driver’s license, are used with no further criminal consequences or involvement of the criminal justice system. Criminal processing and consequences (such as the stigmatisation of personal users – once labelled a ‘junkie’ or drug user it can be very difficult to not be treated as a criminal by potential employers, doctors and housing officers etc.) are eliminated in relation to the possession of small amounts, yet activities relating to larger scale possession, production or sale remain subject to conventional criminal control procedures and penalties.

Whilst key negative consequences of criminal punishment are removed, the possible problem of ‘net-widening’ (alternatives to incarceration are intended to reduce the number of those in prison/court, but in reality end up bringing more offenders into the criminal justice system who previously would never have entered) and ‘secondary criminalisation’ (e.g. due to fine default) exists.

Example Case Study 3: Belgium

In Belgium, there appears to have been a lack of legislative clarity and consequently some confusion among the general public regarding what its cannabis control laws mean. However, prohibition with civil penalties applies, and it is reported that adults found in possession of up to 3 g of dried cannabis or resin or one plant for personal use without aggravating circumstances or signs of problematic use are eligible for a simple warning involving a police fine of 15–25 Euros.

According to figures from the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), the prevalence of cannabis in the UK was 114 percent higher than in Belgium in 2008.

Example Case Study 4: Italy

Italy was one of the first countries to depenalise cannabis (and other illicit drug) use, doing so in 1975. It has, however, changed its control policy approach several times since. A coalition government led by Bettino Craxi announced a prohibitionist shift, according to a zero tolerance approach in 1990. Whilst under the previous legislation implemented in 1975, the personal use and consumption of small amounts of illicit drugs was not a punishable offence, the 1990 reform made personal use a criminal offence. However, after a 1993 referendum showed that 55% of voters supported decriminalisation, this reform was implemented shortly thereafter.

Currently, in Italy, cannabis use is regarded as an administrative offence. For cannabis use, a warning is given for the first offence on the presumption that the offender does not intend to repeat the offence in the future. For subsequent offences, an administrative penalty (such as suspension of driver’s license) is given.

Example Case Study 5: Australia

‘Prohibition with civil penalty’ schemes operate in four Australian jurisdictions – South Australia (since 1987), the Australian Capital Territory (since 1992), the Northern Territory (since 1996), and Western Australia(since 2004). Currently these schemes apply to minor possession, as well as to small-scale cultivation offences in some of

these jurisdictions. There is no uniformity in the eligible amounts of cannabis for these civil penalty provisions, or in the fines imposed. For example, at the time of writing, fines ranged from $A50 to $A200 per offence.

Typically in these schemes there are no special provisions for repeat offenders, although in the WA scheme, those issued a notice on more than 3 occasions in a 2-year period do not have the option of paying the fine, but must attend the education session to remove their infringement notice. In some jurisdictions (e.g. South Australia) police are required to issue an infringement notice if the person is eligible, whereas in others (e.g. Western Australia) police have the discretion to issue a notice or a criminal charge, although issuing a notice would be the norm unless the person is simultaneously charged with a serious other offence or is suspected of drug dealing. However, a new and more conservative state government elected in 2008 has pledged to reintroduce criminal penalties for possession and growing, with a caution for first offenders applying to possession of small amounts of cannabis or a smoking implement, but not to cultivation.

The the results of the social science research into Australia’s decriminalisation is varied – some report a drop in cannabis use, others a relatively significant rise. However, all of the reports generally agree that decriminalisation has not resulted in the explosion of drug use that was predicted by many. It is more important to focus on how decriminalisation has kept thousands out of the criminal justice system, and has saved the government hundreds of thousands of dollars in law enforcement costs.

Example Case Study 6: Russia

Unfortunately, decriminalisation in Russia has been largely inconsistent, as what constituents a ‘large amount’ of drugs has been changed drastically many times. Prior 2004, 0.1grams of cannabis qualified as a ‘large amount’, meaning that using administrative sanctions as opposed to criminals ones against users was essentially impossible. In 2004 this changed, and 10 – 50 individual doses became the threshold for a ‘large amount’, equating to 20grams of cannabis. This resulted in tens of thousands of previously imprisoned users having their sentences slashed or removed entirely.

The thresholds changed once again in 2006, down to 6grams of cannabis.

If someone is found in possession of an amount of drugs under the ‘large amount’, the individual is faced with a fine of approximately £21 or 15 days of administrative detention. This form of detention is actually seen as criminal by the European Court of Human Rights.

There are currently plans for Russia to implement an all out War on Drugs, with severely harsh policies. Individuals who test positive on a drug test but are not actually in the possession of an illegal substance may face imprisonment.